E-Mail This Article to a FriendThe Gray Lady in shadowCould publication of the domestic-spying story lead to indictment of the New York Times?BY HARVEY SILVERGLATE

Fearful that his presidency could be swept into the same historical dustbin as Richard Nixon’s, an unrepentant President George W. Bush seems intent on prosecuting the sources who leaked to the New York Times the details of his administration’s warrantless domestic spying. Butdoes Bush have the chutzpah to go after the Times itself?

A variety of federal statutes, from the Espionage Act on down, give Bush ample means to prosecute the Times reporters who got the scoop, James Risen and Eric Lichtblau, as well as the staff editors who facilitated publication. Even Executive Editor Bill Keller and Publisher Arthur "Pinch" Sulzberger Jr.,could become targets — a startling possibility, just the threat of which wouldserve as a deterrent to the entire Fourth Estate.

Legal means are one thing, but political will is another. If Bush goes after the Times, he could spark a conflagration potentially more destructive to a free press — or to his administration — than Nixon’s 1971 Pentagon Papers machinations, which included efforts to stop publication of the classified study of the Vietnam War, the aborted prosecution of leaker Daniel Ellsberg, and the intention to prosecute newspapers (and their employees) that ran the document. All backfired on Nixon.

Many believe that the Times performed an incalculably valuable service when it reported last month on a top-secret National Security Agency program — almost certainly unlawful — involving presidentially (but not court-) approved electronic surveillance of message traffic between people in this country and locations abroad. The leak investigation by the Department of Justice (DOJ) has begun. What has received virtually no attention is that the Times and its reporters, editors, and publisher are at serious risk of indictment by a vengeful White House concerned not so much with disclosure of national secrets as with revelation of its own reckless conduct.

TARGETING THE TIMES

The Times’ December 16 front-page exposé made headlines around the world. The warrantless eavesdropping the newspaper uncovered is an almost certain violation of Americans’ privacy rights and is very likely a crime. Diverting questions about the highly suspect program, the administration repeatedly makes the absurd claim that this disclosure has tipped off the terrorists that their electronic communications are being monitored. In truth, it’s been well-known for decades by the terrorists and just about anyone else with even glancing knowledge of intelligence-gathering that such surveillance is done lawfully with an order issued by a top-secret national-security court that rarely turns down a government request. That the surveillance under Bush is done unlawfully hardly will change the terrorists’ communications practices.

The DOJ announced on December 30 that it has opened a criminal-leak investigation. The announcement was greeted with only muted criticism from media and civil-liberties circles, perhaps because it looked like nothing more than a replay of the still-ongoing Valerie Plame–outing fiasco. Anthony Romero, executive director of the ACLU, and Marc Rotenberg, executive director of the Electronic Privacy Information Center, welcomed an investigationbut suggested that the object should be the warrantless surveillance program, not those within the government who leaked it. Neither seemed to sense the threat to yet another target: the newspaper that published the story.

Those who don’t see the danger in the DOJ probe of the leaks underestimate how far zealous federal prosecutors can carry such an investigation. Prosecutors’ enormous discretionary latitude, derived from the extraordinary range of narrow, broad, and in some instances dangerously vague criminal statutes that control the disclosure of supposed national-security secrets, renders any such investigation dangerous to a free press.

Forget for a moment the fate of leakers who could be subject to prosecution for anything from disseminating stolen government property to mail and wire fraud, espionage, or even to the capital crime of treason. Instead, consider the lot of the paper that had the courage to spotlight the administration’s potentially criminal conduct: it now facesthe prospect of criminal indictment. (When asked directly if the investigation extended to the publication of the information, a DOJ official remarked broadly to reporters that he could not comment on any aspect of the investigation.)

There is little reason to suppose that the administration would refrain from indicting the newspaper, its reporters, and its higher-ups unless the political downside was too substantial. Indeed, with undoubted additional deep and dark secrets not yet exposed, one assumes that the administration would like to go beyond terrorizing leakers and reach those who report leaks to the public. Historical and legal precedent that suggests the legal viability of such a prosecution has gone largely unnoticed in the public arena — though not likely at the DOJ.